Tag Archives: Proposition 8

Scalia: We Have No Power To Invalidate Legislation Except When I Don’t Like It

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photo of Justice Antonin Scalia
Justice Antonin Scalia: Hypocritical Asshat

In his dissent in United States v. Windsor, Justice Antonin Scalia once again showed he lacks any judicial values beyond his selfish ends. His reasoning for dissenting basically came down to his view that the court lacked the power to invalidate a law democratically adopted. Yet he found no such concern in invalidating the Voting Rights Act yesterday. It is obvious that his personal view of the law determines if he thinks the court has the power to give a ruling. In my world that is known as being a hypocritical asshat.
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So when are we suppose to be protected from the tyranny of the majority?

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The California State Supreme Court ruled today that Prop 8, which made gay marriage illegal, was a valid voter directed exception to their state’s equal protection law. It said it wasn’t rulling on whether the change was good for the people of the state but just if all the i’s were dotted and t’s were crossed legally. They said it had. So I guess as long as a majority follow the proper rules and processes they can decide what rights other minority groups have. Why does that seem wrong to me?

The ruling today sets out two items that caught my eye:

The 136-page majority opinion notes at the outset that the court’s role is not to determine whether Proposition 8 “is wise or sound as a matter of policy or whether we, as individuals believe it should be a part of the California Constitution,” but rather “is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.”

The opinion further emphasizes that the principal legal issue in this case is entirely distinct from the issue that was presented in the court’s decision last year in In re Marriage Cases (2008) 43 Cal.4th 757. There, the court was called upon to determine “the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation.” In the present case, by contrast, the principal issue “concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.”

From the Judicial Council

What that means is the court only looked at the technical aspects of the Proposition, was the various rules and processes followed for the initiative.

Then court then rules:

The majority opinion next addresses and rejects the Attorney General’s claim that because article I, section 1 of the California Constitution characterizes certain rights including the right of privacy as “inalienable,” Proposition 8 is invalid because it abrogates such rights without a compelling interest.

The opinion explains that not only does Proposition 8 not “abrogate” the aspect of the right of privacy discussed in the majority opinion in the Marriage Cases, but that the identification of a right as “inalienable” has never been understood to mean that such right is exempt from any limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such a right. The opinion emphasizes that there is no authority to support the Attorney General’s theory.

So basically in California, if you can get enough people to agree with you, you could stop women from voting, blacks from living anywhere they choose, atheists from holding elected office, or allowing a newspaper to publish what it wants to.

One could say the majority couldn’t do those things and that probably is correct since many of things are protected rights under Federal law, but it highlights what can happen for those actions dimished by majority view that aren’t protected under Federal law like same-sex marriage. How about if there is a state law prohibiting red hair color, left hand users, or limits computer usage?

So why isn’t same-sex marriage protected from the tyranny of the majority? The California court said it is no different than heterosexual marriage only due to Prop 8 you can’t call it marriage.

How stupid is that? The court upholds the law to ban gay relationships from being called marriage yet says they still have the same rights as marriage and the ones that took place before November when the law passed are still valid.

That’s why I prefer the way the US Constitution is amended. The process can be complecated and hard but is less subject to knee-jerk reaction like the zelots who needed to impose their religion on others by not allowing other people to call their committed relationship – marriage.